Motion for a Preliminary Injunction and Memorandum - Wrightslaw

Wrightslaw: Law Library Burriola v. Greater Toledo YMCA (W.D. OH 2001) 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

MELISSA BURRIOLA, 

for herself and as next friend of 

JORDAN TRAVIS BURRIOLA 

v. 

Plaintiff 

GREATER TOLEDO YMCA, et al. 

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Case No.: 

JUDGE: 

MOTION FOR PRELIMINARY 

INJUNCTION AND 

MEMORANDUM IN SUPPORT 

Thomas J. Zraik (0023099) 

5579 Monroe Street 

Sylvania, Ohio 43560 

Telephone: (419) 882-2559 

Facsimile: (419) 882-1425 

Plaintiff Melissa Burriola, on behalf of her son, Jordan, a child with a disability, 

moves the court pursuant to Civ. R. 65, for a preliminary injunction requiring the 

defendants to forthwith reinstate Jordan, with appropriate modifications in place, into 

their daycare program. Grounds for this Motion are fully set forth in plaintiff’s 

accompanying Memorandum of law 

Respectfully submitted, 

_____________________________ 

Thomas J. Zraik, 

Attorney for Plaintiff 

www.wrightslaw.com 1


MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR 

PRELIMINARY INJUNCTION 

I. INTRODUCTION 

Plaintiff Melissa Burriola brings this action pursuant to Title III of the Americans 

With Disabilities Act of 1990, 42 U.S.C. 12180 et seq. (“ADA”), Section 504 of the 

Rehabilitation Act of 1973, 29 U.S.C. 794 (“Section 504”), and parallel state law seeking 

declaratory and injunctive relief and damages. Plaintiffs allege that defendants have 

denied Jordan Burriola the full and equal enjoyment of the benefits of, and the 

opportunity to participate in, defendants’ program, solely on the basis of his disability. 

Jordan is seven-years-old and will be eight on his birthday, October 10, 2000. 

Jordan is a child diagnosed with autism, a pervasive developmental disability commonly 

attributed to neurological etiology. Autism is an impairment affecting verbal and 

nonverbal communication, as well as social interaction. Other characteristics often 

associated with autism include abnormal sensory responses, engaging in stereotyped 

motor movements or mannerisms, and resistance or reactivity to environmental changes 

or change in daily routine. [See 34 C.F.R. 300.7(c)(1)(I)] Jordan exhibits many typical 

characteristics associated with autism including repetitive activities and stereotypic 

movements and echolalia 

Jordan’s mother, Melissa Burriola, is employed full time and requires daycare for 

her children while she is at work. When school is in session, Jordan typically requires 

after-school daycare for between two and three hours a day. However, when school is 

closed during a break, holiday, or for inclement weather, Jordan requires full time 

daycare. For approximately two years, Mrs. Burriola obtained daycare services for 

Jordan at the Greater Toledo YMCA daycare program operated by a branch affiliate, the 

West Family YMCA, on the premises of Calvary United Methodist Church. Officials of 

the West Family YMCA notified Mrs. Burriola by letter dated September 6, 2000, that 

Jordan would be terminated or “disenrolled” from the daycare program as of September 

8, 2000, due to behavior that is inextricably connected to Jordan’s autism. [Exhibit 1: 

West Family YMCA September 6, 2000 letter.] Jordan’s removal from the daycare 

Copyright © 2001 Peter W. D. Wright 2


program was based on his disability and defendants’ refusal to provide him with 

reasonable modifications, such as had previously proved effective in allowing him to 

benefit from and to participate in defendants’ childcare program. Thus, defendants 

discriminated against Jordan on the basis of his disability and, as such, violated federal 

and state laws guaranteeing persons with disabilities the right to integrate into the 

mainstream of society and to be free from discrimination. 

II FACTS 

Jordan Burriola was born October 10, 1992, and is the older brother of Michael 

Burriola, age six-years. Both reside in Toledo, Ohio, with their mother, Plaintiff Melissa 

Burriola. 

Jordan was diagnosed at age four-years as having autism. Autism, a pervasive 

developmental disability, is considered to be a neurological impairment that is 

characterized by significant deficits in verbal and nonverbal communication, the 

tendency to engage in repetitive and stereotyped movements, and unusual reactions to 

changes in routines or environment. 34 C.F.R. 300.7(c)(1) 1 

Jordan’s autism is characterized by many of the same symptoms described above. 

For example, he becomes easily frustrated with changes in his daily routines and engages 

in repetitive activities and sensory movements such as hand flapping, beating his chest, 

pounding his head, and running into walls. Jordan also exhibits echolalia on occasion. 

Jordan “shuts down” when his senses become overloaded. Shutting down is 

characterized by vocalizations or nonsense verbalizations, quick repetitive arm and leg 

movements, running around in circles, yelling and screaming, or crying. [Exhibit 2: 

Melissa Burriola Declaration] 

Jordan’s autism significantly affects his daily life activities such as learning, 

social interaction with peers and adults, and other major life activities. As a child with 

autism, Jordan has been identified as a handicapped child and placed into a special 

education program for children with autism, where he is provided specially designed 

instruction and related services to meet his unique needs pursuant to the Individuals With 

1 See also the “DSM-IV”, Diagnostic and Statistical Manual Of Mental Disorders, Fourth Ed., American 

Psychiatric Association (299.00 Autistic Disorder) 



Disabilities Education Act, IDEA, 20 U.S.C. 1401 et seq., and Ohio law, ORC § 3323.01 

et seq. [Exhibit 3: Jordan’s 2000 – 2001 IEP.] 

Jordan attends the M.O.D.E.L. 2 School, which is a community or charter school 

under the laws of Ohio, specifically designed to serve autistic children. The purpose of 

the M.O.D.E.L. School is limited to providing special education and related services to 

children with autism. The M.O.D.E.L. School is a public school as that term is defined 

under R.C. § 3314.01 and as such, it has the same obligation to provide a free appropriate 

public education to students with disabilities as any other public school. Jordan has 

attended the M.O.D.E.L. School since the 1998 – 1999 school year. 

Plaintiff, Mrs. Burriola, is employed from 9:00 a.m. to 5:00 p.m. and therefore 

both Jordan and his brother require after-school daycare services, and full time daycare at 

times when school is closed. Jordan has attended defendants’ daycare program for more 

than two years, beginning with the 1998–1999 school year, and his brother began 

attending the program in September 1999. Mrs. Burriola selected the Greater Toledo 

YMCA daycare program because the site is nearest to the plaintiffs’ home and because 

the program offers tuition on a sliding scale and is affordable. The West Family YMCA 

branch, located at 2020 Tremainsville Road in Toledo, is a branch affiliate of the Greater 

Toledo YMCA and operates the daycare program where Jordan and his brother were 

enrolled. The daycare program itself, however, is conducted on the premises of Calvary 

United Methodist Church, located in Toledo at 3939 Jackman Street. In addition to the 

after-school daycare, the YMCA program provided full-day childcare for both children 

during times when school was not in session. 

Defendants’ daycare program is licensed to serve fifty-four children, however, as 

many as eighty or ninety may be enrolled for such services. Eligibility for daycare 

services is based solely on the availability of space. [Exhibit 4: Jerome Kelly Declaration] 

Kathy Miley is the Director of Family Services at the West Family YMCA and her 

immediate supervisor is Todd Tibbits. The Executive Director of the West Family 

YMCA is Henry Presseller. The daycare program is supervised by a Facility Director, 

who maintains an on-site office located at the Calvary United Methodist Church. In 

addition to the daycare Facility Director, at least two other staff are employed as 

2 M.O.D.E.L. is an acronym for Multiple Options for Developmental & Educational Learning 



“counselors” or teachers to provide direct daycare services to the children enrolled in the 

program. Fees for the daycare are determined on an individual basis according to family 

income, the number of daycare hours, and the number of children per family enrolled in 

the program. An unsubsidized weekly fee ranging from $80.00 to $90.00 per child is 

charged if the family’s income exceeds the benchmark established by the agency. In 

Jordan’s case, Mr. Burriola paid a monthly fee of approximately $30.00 to $60.00 for 

Jordan’s daycare. 

In addition to other government funding, the West Family YMCA received a 

$4,000.00 grant for summer 2000, through the Toledo Community Recreation 

Committee, which distributed funds including $100,000 allocated by the City of Toledo, 

in support of youth and family programming. 

Because of Jordan’s disability, Mrs. Burriola informed the defendants that he 

would need some minor accommodations to allow him to be successful at the daycare 

program. In fact, the M.O.D.E.L. School offered to provide training to the employees 

and staff of the daycare program, at no cost, on the nature of autism and how to work 

with autistic children in general, and specifically with Jordan. Administrators at the West 

Family YMCA, however, did not make attendance at this training mandatory and only 

two persons directly involved with Jordan elected to attend. [Exhibit 5: Joan McCarthy 

Declaration; Exhibit. 4 id.] 

The modifications Jordan requires to be successful in the daycare program are 

inexpensive and minor in nature, requiring primarily that the person or persons 

supervising him become informed about autism and how to relate to Jordan. [Exhibit 6: 

McCarthy August 8, 2000 letter] 

Of the two daycare staff who attended the training by the M.O.D.E.L. School, one 

left her employment in the daycare program almost immediately and the second resigned 

from the program approximately one month later. As a result no daycare staff remained 

with any training on the topic of autism or how to work with Jordan. 

Because no one remaining at the daycare program was willing to become 

informed about autism, or trained in working with Jordan, his autistic characteristics 

became exacerbated and he was ultimately forced out of the program on September 8, 

2000. [Exhibit 1, letter. id.] 



West Family YMCA officials promised to hire a “teacher” during summer 2000 

qualified to work with Jordan and other children with disabilities in the daycare program. 

No one was ever hired, however, even though funding for such a position either was or is 

available. Ms. Miley repeatedly attempted to hire unqualified persons to fill this position 

and, in addition, repeatedly interfered with one (trained) staff member who had attempted 

to work with Jordan. [Exhibit 4, Kelly. id.] ] Ms. Miley informed other staff members 

that she wanted to get Jordan out of the daycare program because, in her opinion, “he 

doesn’t belong here”. [Exhibits 4, Kelly; 5 McCarthy. id.] Ms. Miley, in fact, actively 

prevented the modifications and accommodations that Jordan needed from being 

implemented. [Exhibits 4, Kelly; 2 Burriola. id.] 

According to a the former on-site Facility Director, who provided services to 

Jordan for approximately one year, with the appropriate modifications in place Jordan is 

easily handled and behaves normally in the daycare program. [Exhibit 4, Kelly. id.] 

Primarily, the persons working with Jordan need to become informed about autism and to 

provide Jordan the structure and guidance he needs. 

II ARGUMENT 

In order to prevail on the motion for a preliminary injunction, the court must 

consider, (1) plaintiffs’ likelihood of success on the merits of the claim, (2) whether the 

plaintiffs will suffer irreparable harm, (3) the probability of substantial harm to others and 

(4) whether the public interest is advanced. Washington v. Reno, 35 F.3d 1093, 1099 

(6 th Cir. 1994). These are not prerequisites but rather “factors to be balanced” In Re 

Delorian Motor Co., 755 F.2d 1223, 1229(6 th Cir. 1985). 

None of the four factors is to be deemed conclusive on its own “and” each 

need not be viewed in isolation from the others, solely as an independent 

variable.” Blue Cross & Blue shield Mutual Of Ohio v. Columbia /HC4 

Healthcare et al, 110 F.3d 318, 334 (6 th Cir.1997). 

The issues presented for review in the context of this motion are relatively clear. 

The court must determine whether or not the plaintiffs are likely to succeed on their 

claims that the defendants illegally terminated Jordan from the daycare program operated 

by the West Family YMCA, and that the defendants failed to maintain or provide 



reasonable modifications to its policies, practices and procedures to allow Jordan to 

benefit from and to participate in the daycare program operated by the defendants. 

The Plaintiffs have Shown A Likelihood Of Success On The Merits As Indisputable 

Facts Show That The Plaintiffs Are Entitled To Relief Under The ADA 

The plaintiffs’ burden regarding likelihood of success on the merits is to show, 

“sufficiently serious questions going to the merits to make them a fair ground for 

litigation and a balance of hardships tipping decidedly towards the party 

requesting the preliminary relief.” Farm Labor Organizing Committee v. Ohio 

Highway Patrol, 991 F. Supp. 895, 900 (N.D. Ohio 1997). 

In this case, the plaintiffs must show that Jordan is qualified for defendants’ daycare 

program and was either denied a reasonable modification, or an adverse decision was 

made against him on the basis of his disability. McPherson v. Michigan High School 

Athletic Ass'n, Inc., 119 F.3d 453, 460 (6th Cir. 1997). citing Roush v. Weastec Inc. 96 

F3d 840 (6 th Cir. 1996). The showing for discrimination under the ADA is similar to that 

under Section 504 of the Rehabilitation Act, and construing the cases in one is instructive 

for construing cases under the other. Andrews v. State of Ohio 194 F3d 803, 807 (6 th Cir. 

1997). Further, the 6 th Circuit recently stated that while the standards used in Section 504 

and the ADA are largely the same, there are differences. For example, in Title III of the 

ADA, the phrase “solely by reason of” is not mentioned. McPherson id. p. 465 In large 

part this distinction is meaningless since the plaintiff here need only establish that he is 

disabled and is either discriminated against on the basis of his disability or was denied a 

reasonable accommodation. McPherson at pg. 466 

Jordan is a person with a disability and the defendants, a private entity providing 

public accommodations, have excluded Jordan from, and denied him the benefits of the 

defendants programs, services or activities on the basis of his disability or have otherwise 

subjected him to discrimination. There can be no dispute that Jordan Burriola is a 

“qualified individual with a disability” under the ADA. The term “disability” is defined 

in the Act as: 

“* * * any physical or mental impairment that substantially limits one or more of 

the major life activities of the individual.” 

See 42 U.S.C. 12102(2); see also 28 C.F.R. 36.104; 28 C.F.R. 35.104. 



The term “physical or mental impairment” means any physiological, or mental disorder 

affecting body systems, including neurological, special sense organs, respiratory, 

cardiovascular and digestive. The term “major life activities” means functions such as 

caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, 

breathing, learning and working. Id 

Jordan’s autism affects his ability to communicate effectively with his peers and 

adults, to interact appropriately with his peers and adults, and causes him to engage in, 

stereotypic sensory movements, repetitive activities and other types of atypical behavior. 

[Exhibits 2, Burriola; 4, Kelly; 5 McCarthy. id.] In addition, Jordan is identified as a 

handicapped child and is provided special education and related services to meet his 

unique disability needs, pursuant to the Individuals With Disabilities Education Act, 

(IDEA) 20 U.S.C. 1400 et seq., and Revised Code Section 3323.01 et seq. These services 

are provided to Jordan at the M.O.D.E.L. School, a Community School charted by the 

State of Ohio pursuant to R.C. 3323.01. The M.O.D.E.L. School provides special 

education and related services to students diagnosed and identified pursuant to the IDEA 

as having autism. [Exhibits 3, IEP; 5, McCarthy. id] Furthermore, Mrs. Burriola states 

that, in comparison with same-aged peers, Jordan requires more close supervision, 

consistency, structure in his environment, and highly organized activities at home due to 

his disability. [Exhibit 2, Burriola id.] Because Jordan functioned successfully in 

defendants’ daycare program when provided with appropriate supervision by informed 

staff, there can be no question that he meets the essential eligibility requirements for 

entry into and continued participation in defendants’ daycare program. The application 

and enrollment requirements for the daycare program require simply that the child be 

between the ages of five and twelve year, and that there is space available. No other 

eligibility criteria exist. [Exhibit 2, Burriola id.] 

It is also extremely likely that the plaintiffs can show “sufficiently serious 

questions going to the merits of the case to make them a fair ground for litigation, and a 

balance of hardships tipping decidedly towards the party requesting the preliminary 

relief”. The question of whether the defendants, as a place of public accommodations, 

illegally excluded Jordan from participation in, or denied him the benefits of the 

defendants’ services, programs or activities, or otherwise subjected him to discrimination 



is addressed in the Act at 42 U.S.C. 12182, and in 28 C.F.R. 36.201 et seq. As mirrored 

by the regulation, the Act states: 

“(a) General Rule. No individual shall be discriminated against on the basis of 

disability in the full and equal enjoyment of the goods, services, facilities, 

privileges, advantages, or accommodations of any place of public 

accommodations by any person who owns, leases {or leases to}, or operates a 

place of public accommodations.” 

In reference to Denial of Participation, 42 U.S.C. 12182(b)(1)(A)(I), in part, states: 

“It shall be discriminatory to subject an individual… with a disability or 

disabilities, on the basis of a disability…of such individual…directly or through 

contractual, licensing, or other arrangements, to a denial of the opportunity of the 

individual… to participate in or benefit from the gods, services, facilities, 

privileges, advantages, or accommodations of an entity.” 

Section II of the above section addresses Participation in Unequal Benefits, as follows: 

“It shall be discriminatory to afford an individual … on the basis of a disability or 

disabilities of such individual…directly or through contractual licensing or other 

arrangements with the opportunity to participate in or benefit from a good, 

service, facility, privilege, advantage, or accommodation that is not equal to that 

afforded to other individuals.” Id 

Subsection (b)(1)(D), Administrative Methods, further states: 

“An individual or entity shall not, directly or by contractual, licensing or other 

arrangements, utilize standards or criteria or methods of administration (I) that 

have the effect of discriminating on the basis of disability…”. Id. 

Subsection (E), Association, 42 U.S.C. 182(b)(1) also states: 

“It shall be discriminatory to exclude or otherwise deny equal goods, services, 

facilities, privileges, advantages, accommodations, or other opportunities to an 

individual or entity because of the known disability of an individual with whom 

the individual or entity is known to have a relationship or association.” Id. 

Specific prohibitions against discrimination towards persons with disabilities are found at 

42 U.S.C. 12182(b)(2). Subsections (b)(2)(A) (I through III) specifically preclude a place 

of public accommodations from discriminating against individuals with disabilities by: 

“I. [I]mposing eligibility or other or application criteria that screen out or tend to 

screen out individuals with disabilities from fully and equally enjoying the goods 

services, facilities, privileges, advantages, or accommodations, unless such 

criteria can be shown to be necessary for the provision of such goods, services… 

being offered; 



II [F]ailure to make reasonable modifications to the policies, practices, or 

procedures when such modifications are necessary to afford such goods, services, 

facilities, privileges, advantages, or accommodations to individuals with 

disabilities, unless the entity can demonstrate making such modifications would 

fundamentally alter the nature of such goods, services, facilities, privileges, 

advantages or accommodations;” and 

III [F]ailure to take such steps as may be necessary to ensure that no individual 

with a disability is excluded, denied services, segregated or otherwise treated 

differently than other individuals because of the absence of auxiliary aids and 

services, unless the entity can demonstrate that taking such steps would 

fundamentally alter the nature the goods, services, facilities, privileges, 

advantages or accommodations being offered, or would result in an undue 

burden….” 

The regulations at 28 C.F.R. 36.201, 202, 203, 204 and 28 C.F.R. 36.301, 302 and 303 

more fully interpret and implement the requirements and prohibitions contained in 42 

U.S.C. 12182 as described above. 

In short, the defendants may not discriminate against Jordan by denying him the 

full and equal participation in the daycare program on the basis of his disability, and must 

ensure that his participation in the daycare program is in the most integrated setting 

appropriate. Further, the defendants must not apply any application or eligibility criteria 

that may serve to screen Jordan out from participation in the daycare program; must make 

reasonable modifications to its policies, practices and procedures that would allow Jordan 

to enjoy the benefits of defendants’ daycare program; and must take all steps necessary so 

as not to exclude Jordan from participation in the daycare program as the result of not 

having available auxiliary aids and services, unless the defendants can demonstrate that 

the criteria, or policies, practices and procedures, or provision of auxiliary aids and 

services would fundamentally alter the nature of the daycare program or pose an undue 

burden to the defendants. 

Applying the statutory and regulatory requirements listed above to the present 

facts demonstrates that the plaintiffs are likely to succeed on the merits. It is undisputed 

that Jordan was terminated from the daycare program operated and administered by the 

defendants, thus denying him full and equal participation in the benefits, services, 

facilities, privileges, advantages and accommodations provided by the YMCA daycare 

program. [Exhibit 2, Burriola. id.] Jordan cannot enjoy the benefits of the daycare 



program unless the staff who supervise him are informed about the nature and affects of 

autism, and trained on techniques and interventions appropriate for Jordan. [Exhibit 5, 

McCarthy id.] Jordan has demonstrated that the manifestations of his autism are well 

managed when staff become informed and implement the reasonable modifications 

suggested by Jordan’s special education teachers, and previously used effectively when 

implemented at the defendants’ daycare program. [Exhibit 4, Kelly id.] Thus, even 

though Jordan has previously demonstrated his ability to enjoy the benefits of the daycare 

program with reasonable modifications, defendants have and continue to refuse to 

provide these reasonable modifications and, instead, terminated him from the daycare 

program. 

The defendants are required to provide reasonable modifications to its policies, 

practices and procedures, unless they can demonstrate that such modifications would 

fundamentally alter the nature of the daycare program. Defendants’ letter to plaintiff, 

Melissa Burriola, informing her on September 6, 2000, that Jordan was to be terminated 

from the daycare program as of September 8, 2000, did not raise the issue that making 

reasonable modifications to its policies, practices and procedures would fundamentally 

alter the nature of the daycare program. The issue was not raised because under the facts 

of this case the defendants cannot reasonably make that argument. In fact, it has been 

clearly demonstrated that with such reasonable modifications Jordan can successfully 

enjoy the benefits of the daycare program and is able to participate in it as any other 

child. [Exhibits 4, Kelly; 5 McCarthy id.] The modifications that are necessary and 

which would allow Jordan to benefit from the defendants daycare program are 

reasonable, not very time consuming and inexpensive. Jordan requires personnel 

working with him and/or supervising him to become informed about the nature of autism 

and the effect it has on Jordan’s social functioning. In addition, persons working with 

Jordan need to implement modifications similar to the recommendations made by Joan 

McCarthy, who has worked directly with Jordan in his special education program at the 

M.O.D.E.L. School and, in addition, personally observed Jordan in the daycare program, 

provided training to two YMCA daycare workers, and developed a written plan for 

Jordan’s daycare. The modifications include, in part: 



?? … a consistent, visual schedule of each day’s activities (Jordan will be 

relieved to have a schedule of activities made for him as the organization 

of time is very difficult for him, as is initiating play with other children); 

?? Simple board games (Candy Land, Hi-Ho-Cherryio, Shoots and 

Ladders),simple card games (Old Maid, Go Fish, War); 

?? …more time playing with the Nintendo be scheduled for Jordan than the 

10 minutes currently allotted. Playing Nintendo is an area of strength for 

Jordan and it is where he is able to demonstrate age-appropriate social 

skills ) assisting other children…giving high-fives, etc.; 

?? Visuals …to redirect Jordan. Visuals … [for example] include “Quiet 

Hands”, “Self-Control”, “Sit Quietly”, “Check Schedule”, and “Share”; 

?? … Jordan [should] be afforded a “Break” location when the staff [see] … 

physical signs that Jordan [is] having difficulty regulating his behaviors. 

These physical signs include Jordan’s verbal communication becoming 

confused and louder, more movement of his arms and legs, and crying 

sounds or actual crying; 

?? …staff need to reduce their auditory input to Jordan when he demonstrates 

these physical signs and redirect with the above-mentioned visuals 

[Exhibit 6, McCarthy letter. id] 

These modifications may seem inconvenient initially, but they are not unreasonable. 

However, it is clear they are necessary to enable Jordan to enjoy the benefits of the 

daycare program. 

Interestingly, while the defendants do not appear to raise the argument that 

Jordan’s modifications would fundamentally alter the nature of the daycare program, the 

letter terminating him appears to raise an argument along the lines that Jordan’s 

attendance at the daycare program would pose a {direct threat} to the safety of others that 

a reasonable accommodation would not mitigate. The September 6, 2000 letter suggests 

that Jordan was terminated because he hit or struck other children in the program on 

several occasions and, on one occasion, went onto a landing between floors and held a 

door closed so that a staff person could not open it by herself, suggesting his behavior put 

Jordan at risk. [Exhibit 1, West YMCA letter. id.] The direct threat defense is found in 

the statute at 42 U.S.C. 12182(b)(3) and states: 

Nothing in this title shall require an entity to permit an individual to participate in 

or benefit from the goods, services, facilities, privileges, advantages, and 

accommodations of such entity, where such individual poses a direct threat to the 

health or safety of others. 



The term “direct threat” means a significant risk to the health or safety of others 

that cannot be limited by a modification of the policies, practices or procedures or by the 

provision of auxiliary aids or services. The regulation implementing this statutory 

provision helps clarify the intent of the provision. The comment to the regulation states in 

pertinent part, 

The inclusion of this provision is not intended to imply that persons with 

disabilities pose risks to others. It is intended to address concerns that may arise 

in this area. [It establishes a strict standard that must be met before denying 

services to an individual with a disability or excluding that individual from 

participation.] 28 C.F.R. 36.208 comment. 

The rule requires that places of public accommodation determine whether an individual 

poses a direct threat by engaging in an individualized process, utilizing reasonable 

judgment that relies on current medical knowledge or on the best available objective 

evidence, to ascertain: the nature, duration and severity of the risk; the probability that the 

potential injury will actually occur; and whether reasonable modifications of policies, 

practices and procedures will mitigate the risk. 28 C.F.R. 36.208(c). Applying this 

standard to the present case clearly demonstrates that the defendants have not and cannot 

meet the burden of establishing Jordan poses a direct threat to the health or safety of 

others at the daycare program. 

The daycare program’s former Facility Director, Mr. Jerry Kelley, who worked 

closely with Jordan from August 1999 through August 2000, has provided sworn 

statements that Jordan posed no risk of safety to others when the modifications 

recommended by Jordan’s teachers were implemented. [Exhibit 4, Kelly. id.] Mr. Kelley 

also states that his ability to work with Jordan and freedom to implement modifications 

for him were significantly impeded by the West Family YMCA’s Director of Family 

Services, Kathy Miley. Ms. Miley directly ordered Mr. Kelley to discontinue spending 

any one-to-one time working with Jordan, and failed or refused to hire a qualified teacher 

or instructor to work with Jordan and other special needs children enrolled in the daycare 

program. [Exhibit 4, Kelly. id.] It was only after Mr. Kelley resigned and left, and no 

staff remained in the daycare program who were trained or willing to use the previously 

successful modifications required, that Jordan’s ability to participate was compromised 

and began to deteriorate until he was ultimately dismissed from the daycare program. 



Obviously, the defendants failed to comply with any of the standards imposed on them by 

28 C.F.R. 36.208 when terminating Jordan from the daycare program. 

The Balance Of Hardships Tip Decidedly To The Plaintiffs. 

The only hardships the defendants can claim are the costs, if any, of training 

current and future staff employees to recognize and understand the characteristics of 

autism and the relatively minor inconvenience of implementing the modifications 

recommended by the M.O.D.E.L. School. 

In contrast, plaintiffs will undeniably suffer the complete loss of necessary 

daycare services for Jordan. Jordan will be denied the opportunity to learn appropriate 

socialization skills outside the school setting, and will be completely denied the 

opportunity to be integrated with non-disabled children in a daycare setting. In addition, 

plaintiffs will be forced to seek costly “special” daycare services designed specifically for 

children with special needs. These services are not only more costly than the services 

provided by the defendants, but they are extremely hard if not impossible to find. If 

found, in most cases a long waiting list for enrollment exist. 

Based on the foregoing, the plaintiffs have shown sufficiently serious questions 

going to the merits to make them a fair ground for litigation and have demonstrated 

clearly that the balance of hardships unquestionably favors the plaintiffs. Plaintiffs have 

thus established likelihood they will succeed on a trial of the merits. 

Jordan Burriola Will Suffer Irreparable harm If He Is Not Allowed To Participate 

In The Defendants’ Daycare Program. 

The harm suffered by Jordan as a result of being dismissed and totally excluded 

from defendants’ daycare program where he had attended for two years is immediate, 

irreparable and ongoing. Relevant to the issue presented here is the fact that several 

courts have found that the exclusion of students with disabilities from school sports 

activities were likely to result in irreparable harm, because of the negative effect of such 

exclusion on socialization. Sandison v. Michigan High School Athletic Assn., 863 F. 

supp. 483, 491(E.D. Mich.1994); Denin v. Interscholastic Athletic Assn., 913 F. Supp. 



663, 667, (D. Xco. 1996); Johnson v. Florida High School Activities Assn., Inc., 899 F. 

Supp. 579, 586, (M.D. Fla. 1995). 

In this case, plaintiffs have clearly shown the harm to Jordan, socially and 

educationally, resulting from defendants denying him the opportunity to participate in 

and enjoy the benefits of the daycare program provided by the defendants. As a child 

with autism it is particularly important for Jordan’s development that he have consistent 

and constant interaction with non-disabled children, along with the necessary 

supervision, and training of the staff working with him to aid in appropriate socialization 

activities. Denying him this opportunity, will force Jordan to seek daycare services from 

agencies serving only the disabled, thus delaying any opportunity to learn appropriate 

social skills. In addition, Jordan is expected to be able to be integrated into a “regular” 

school for the 2001-2002 school year. [Exhibit 5 id.] The effect upon Jordan of removing 

him from his integrated daycare program may have further negative impact on this. The 

net result to Jordan is that he has and continues to suffer daily irreparable harm by the 

defendants’ illegal conduct in removing him from his daycare program. 

Considering the factor of irreparable harm, within the context of this motion, the 

question of whether the harm can be fully compensated by money damages is relevant. 

“[A] plaintiff’s harm is not irreparable if it can be fully compensable by money 

damages. However, an injury is not fully compensable by money damages if the 

nature of the plaintiff’s loss would make damages difficult to calculate.” Basic 

Computer Corp. v. Scott, 973 F.2d 507, 511, (6 th Cir. 1992); See also Dennin v. 

Conn. Interscholastic Athletic Assn., supra, 913 f. Supp. at 667; 11 A. Wright 

and Miller Federal Practice and Procedure, Sec. 2948. 1, n 1221, (1995); Moore’s 

Federal Practice 2’d at Sec. 65.04(1)(A) no. 66, 68,69, 72. 

Jordan has and continues to suffer irreparable harm by being totally excluded from the 

defendants’ daycare program. The harm of being excluded from an integrated setting 

with children who are not disabled, the loss of learning and opportunity to model 

appropriate interpersonal social behavior cannot easily be measured in terms of money 

damages. Further, as the 6 th Circuit has recognized, the requirement of irreparable harm 

is met when the plaintiff’s injuries “are the very type of injuries Congress tried to avoid.” 

E.E.O.C. v. Chrysler Corp. 733 F. 2’d 1183, 1186, (6 th Cir. 1998). The purpose of the 

ADA is to 



“..provide a clear and comprehensive national mandate for the elimination of 

discrimination against individuals with disabilities” [and to provide] "clear, 

strong, consistent enforceable standards addressing discrimination against 

individuals with disabilities;” [and to ensure] “the federal government plays a 

central role in enforcing the standards established by this act on behalf of 

individuals with disabilities” [and finally] ” to invoke the sweep of congressional 

authority, including the power to enforce the Fourteenth Amendment and to 

regulate commerce, in order to address the major areas of discrimination faced 

day to day by persons with disabilities”. 42 U.S.C. 12101(b). 

It is obvious that none of these purposes can be accomplished if a place of public 

accommodation, in this case the defendants’ daycare program, is free to discriminate 

against Jordan. The defendants’ daycare program is a place of public accommodation as 

that term is defined by 42 U.S.C. 12181(6)(7)(K). The congressional intent to afford full 

and equal opportunities to persons with disabilities to participate in the mainstream of 

society begins at the time when disabled children are first enrolled in a nursery or daycare 

program such as the defendants. To allow disabled children to be excluded at the very 

time integration can have the most beneficial impact would significantly frustrate the 

intent of congress to end discrimination against persons with disabilities. 

The Defendants Can Make No Showing Of Substantial Harm To Others. 

It is unimaginable how requiring the defendants to reinstate Jordan into the 

daycare program will cause substantial harm to others, in particular, where his 

reinstatement would be accompanied with the modifications necessary to ensure his 

successful enjoyment of the program. As argued above, these modifications are not time 

consuming and may pose a mild inconvenience, at most, to staff. Moreover, the 

modifications are inexpensive and have a record of demonstrated success when provided 

to Jordan earlier during his enrollment there. 

The Public Interest Is Advanced By Requiring The Defendants To Provide Jordan 

With The Necessary Modifications That Will Allow Him To Attend The Daycare 

Program Successfully. 

Requiring the defendants to reinstate Jordan along with the modifications he 

needs to be successful furthers the public interest and the intent required by congress in 

adopting the ADA. Regarding this factor this court has found that 



“ guarding against violations of… federal law serves the public interest.” Farm 

Labor Organizing Committee supra, 991 F. Supp. at 907. 

Similarly, Sandison v. Michigan High School Athletic Assn., supra, stated 

“The purpose of the ADA … is to include persons with disabilities in society, 

equal to those without disabilities by addressing discrimination against persons 

with disabilities. 42 U.S.C.A. sec. 12101 [and] There is significant public 

interest in eliminating discrimination against persons with disabilities…” 863 F. 

Supp. at 491. 

Requiring defendants to readmit Jordan to the daycare program and to provide 

him with necessary modifications will certainly be within the public interest, especially 

since the defendants receive public money to help operate its programs in the form of 

government grants. 

IV CONCLUSION 

Considering the facts and arguments presented herein, the plaintiffs have shown 

that they are entitled to a preliminary injunction requiring the defendants to readmit 

Jordan into the West Family YMCA daycare program and to provide the necessary 

modifications he requires to participate successfully in the daycare program 

Respectfully submitted, 

_____________________ 

Thomas J. Zraik 

Attorney for Plaintiffs 



Links: Burriola v. Greater Toledo YMCA (W.D. OH 2001) 

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Decision in html 

Closing Arguments in Burriola v. Greater Toledo YMCA by Attorney Thomas J. 

Zraik 

Why This Case is Important by Thomas J. Zraik, Esq. 

Analysis by Peter W. D. Wright, Esq. 

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